The “negligence-per-se” doctrine provides that in certain situations a criminal statute (or

administrative regulation or municipal ordinance) may be used to set the standard of care

in a negligence case.

These statutes make no mention of civil liability but, rather, impose

fines or even imprisonment as punishment for those violating their dictates. Where

appropriate, a specific legislative standard replaces the more general reasonable person standard.

Factors Used for Determining the Propriety of Adopting a Statute As the Standard of Care

To decide whether a statute should be adopted as the standard of care in a negligence

case, a judge must determine that the statute provides the sort of specific guidance that

justifies its use by a civil court. Further, a judge must examine the statute in order to

determine whether the statute was designed to protect against the type of harm suffered

by the plaintiff and whether the class of persons designed to be protected by the statute

includes the plaintiff.

Type of Harm

It is easy to determine the type of harm against which a statute was designed to protect when the statutory purpose can be discerned readily from the language of the statute or from its clear legislative history. Often the statutory purpose is not readily discernible from the statute's language or legislative history, however. Here judges have great discretion.

Plaintiff in Protected Class

Sometimes it is easy for a judge to determine the class of persons a statute was designed

to protect, as where legislation is passed to promote worker safety. Sometimes, however,

the scope of the protected class is uncertain.

Licensing Statutes

Most courts refuse to use licensing statutes as the standard of care because the lack of a license itself does not establish the lack of due care.

Effects of Non-Adoption and of Adoption of Statute

Non-Adoption:

The judge's determination that the proffered statute should not be adopted as the standard

of care does not foreclose P's recovery for negligence. The case proceeds under the usual

“reasonably prudent person” standard of care.

Adoption:

In most jurisdictions, the statute replaces the usual “reasonably prudent person” standard

of care. To determine breach, all the jury needs to find is that the statute was violated.

The plaintiff does not automatically recover upon a finding of breach of the statutory

standard of care because the plaintiff must still establish the other elements of a

negligence cause of action. A minority of jurisdictions do not follow the negligence-per se

approach. In these jurisdictions, the standard of care remains that of a reasonably

prudent person and the relevant statute is simply admitted for the jury's consideration in